Justices hear `virtual' child-porn case

WASHINGTON — Skeptical Supreme Court justices on Tuesday quizzed lawyers on the scope of a pornography law that bans images of fictional children in simulated sex acts.

Congress and the Bush administration say the law is needed to protect children in the computer age. Civil libertarians call it a violation of free speech, and a U.S. appeals court struck it down. The Justice Department is asking the high court to reverse that decision.

The Supreme Court heard oral arguments in the U.S. courthouse for the second day after its building was closed for anthrax testing.

Pictures of children in sexually explicit poses have long been banned. But Congress in 1996 expanded its ban to include computer-generated pictures and images that "appear to" depict minors in sexual situations.

The government's lawyer, Deputy Solicitor General Paul Clement, argued that the amended Child Pornography Prevention Act "protects real children from real abuse." It does so, he said, by banning material that has the same effect as real child pornography and by allowing the government to "effectively prosecute" other child porn.

One of the Justice Department's central arguments is that it is difficult, if not impossible, to distinguish "virtual" images from images of real children engaged in sexually explicit conduct. Without this statute, it says, pornographers can escape prosecution by alleging that the offending images are computer-generated and do not depict actual children. The burden is then on the prosecutor to prove the children exist.

In what would be the first of many interruptions, Justice David Souter asked if the government had lost any cases because defendants used that defense. Clement conceded it had not--but claimed that was only because of the 1996 law.

Justices John Paul Stevens and Ruth Bader Ginsburg suggested that the law would apply to images of young adults who look like children--say, a 19-year-old who appears 17. Clement replied that the creator or distributor of such images has an "affirmative defense" if he can prove the actor was older than 18.

This shifting of the burden of proof to the prosecuted individual is worrisome to civil libertarians. They note that a legitimate user of images that appear to involve sexually active minors--a researcher, for example--would have no way to prove how old the actors were.

The law was challenged by the Free Speech Coalition and others, who argue the language of the statute is so broad that it criminalizes mainstream films and other works of art.

"All visual messages of adolescent sexuality are barred, regardless of their value," said H. Louis Sirkin, a 1st Amendment lawyer from Cincinnati who represented the coalition.